Equal Justice: Fair Legal Systems in an Unfair World by Frederick Wilmot-Smith (review)

In Equal Justice: Fair Legal Systems in an Unfair World, Frederick Wilmot-Smith presents a theory of a just legal system, which is not an easy task. The author makes a strong case for significant (and perhaps radical) legal reform. It is argued that the problem lies not necessarily in the law itself, but with legal procedure and institutions. In other words, even if laws are perfectly drafted, they can still lead to injustice if they are not administered properly. As someone who has also been criticized for being a radical legal thinker, I applaud Wilmot-Smith for giving us a framework for thinking outside the traditional legal box. This book provides a big picture framework for asking questions about the social characteristics (race, gender, class, wealth) of the individuals in play (such as judges, lawyers, and litigants), and the outcomes that come from unfair legal procedures. In other words, not all litigation can be equal. There are certain characteristics that will inevitably challenge the fairness of the distribution of justice. Accordingly, the author acknowledges that even the fairest legal system will still result in injustices from time to time. Yet, the author cleverly sketches out what a just legal system might look like to ensure that any injustice will stem from equality and fair procedure.

In arguing that there are various benefits and burdens of legality, Wilmot-Smith presents a compelling argument around the need for equal justice. The author points to the many problematic realities of any legal system to make a case for legal reform: the difficulty in accessing justice; (in)equality before the law; the possibility for incorrect decision-making; unequal enforcement of laws; the immense difficulty for anyone without a legal education to understand the content of statutes; justifying spending taxpayer money on legal reform; and so on.

In practice, the author recognizes that equal justice is impossible. In order to justify the inevitable injustices that will occur in any legal system, the injustice must arise from fair procedure. What is perhaps the most compelling piece of this book is the idea of a fairness floor based on the values of liberty and the rule of law. The fairness floor, as argued by Wilmot-Smith, is necessary for a legal process to be fair. It is a basic level of legal resources that are awarded to everyone. It is possible to achieve more justice than the floor provides, but the fairness floor ensures equality and access for anyone needing to use the legal system. Under this model, the rule of law is divided into the "guidance condition" (the law cannot be secret) and the "congruence condition" (the need for resources for compliance). (78-79) This idea of congruence is a fascinating one – it is a big picture model serving as a sound configuration for positive reform. Even with a properly implemented guidance condition, it can still be extremely difficult to make sense of the content of these laws, particularly since judges interpret the laws, effectively changing their content.

As articulated by the author, "any legal system that aims to comply with the rule of law must ensure that people are able to be guided by law." (81) Under the congruence condition, the legal system must be shaped not only around the promulgation of laws, but between the congruence of norms and application – that is, accessible legal institutions, truth-tracking, and independent judges, all of which help define a fair procedure. And what makes this model so intriguing is that the result must always be equal: the goal is to "equalise the justice benefits and burdens of legality." (86) Failure to meet the congruence model means that "something other than law" (79) would be guiding decision-making. While the idea of a fairness floor is fascinating, the idea that there are other factors, such as social characteristics, potentially shaping legal outcomes is not a novel one.

Donald Black, for instance, has long argued that the social...